Grassroots Group Warns Hawaii Plan Is Racially Discriminatory, Unconstitutional and Would Set a ‘Dangerous Precedent’

(Washington, DC) – Judicial Watch today announced its opposition to an effort by the Obama administration to recognize a new race-based “tribe” of Native Hawaiians. The government watchdog details how the Obama Interior Department’s proposed regulation would be contrary to laws against racial discrimination and would be an unconstitutional end-run around Congress, which has repeatedly rejected legislation granting tribal status to Native Hawaiians.

Last month, Judicial Watch persuaded the U.S. Supreme Court to issue an injunction to stop the counting of ballots in a race-based election that sought to seat delegates to a planned constitutional convention, which would then prepare the “governance documents” for a separate Native Hawaiian entity that the Obama administration could grant “government-to-government” recognition. Judicial Watch attorneys argued that its clients would be denied the right to vote either because of their race or their political views, in direct violation of the U.S. Constitution and the Voting Rights Act of 1965. The Supreme Court issued the injunction despite the Obama administration’s legal support for the Hawaiian election, which would have been limited to those with at least “one drop of blood” of Native Hawaiian ancestry.

Judicial Watch, citing last month’s extraordinary Supreme Court intervention, warned that “the process described in the Department’s regulations is racially discriminatory and would violate the Fourteenth and Fifteenth Amendment rights of Hawaiian citizens.” The proposed regulation would provide for governing documents created and ratified by the Native Hawaiian community, and expressly forbids the inclusion of votes cast by “persons who were not Native Hawaiians.” Indeed, the ancestry requirement set forth in the proposed regulations is virtually identical to ancestry requirements that have twice been enjoined by the Supreme Court in the context of elections—most recently, just a few weeks ago. Judicial Watch urged the Obama Interior Department to stand down:

We urge you and the administration not to insert yourselves into a political movement that would deprive citizens of the right to vote—and ultimately divide them—on the basis of race. The Department’s recognition of the results of such an election would not only condone, but institutionalize, racial discrimination. It would not only be unlawful, it would be unconscionable for the Department of the Interior to use this election—or any process that similarly denies citizens the right to vote because of their lack of a particular bloodline—to advance an administrative agenda.

The Obama administration’s plan also subverts the will of Congress, as federal recognition of tribes is granted only through “a process set forth in congressional statute, not by unilateral executive action … Without proper statutory authorization by Congress, a regulatory scheme promulgated by an executive agency to grant tribal status to Native Hawaiians would violate fundamental separation-of-powers principles.”

Despite [the proposed regulations’] many references to a “special political and trust relationship” between the United States and Native Hawaiians, the fact remains that the federal government has never recognized Native Hawaiians as a sovereign entity like other Indian tribes. If it had, there would have been no need for the Akaka Bill. The Department’s claim that Congress has “already” recognized Native Hawaiians as a tribe defies both fact and reason. If that is the case, one must wonder: what exactly was the point of the Akaka Bill? And why did members of Congress spend political energy for more than a decade trying to pass it? If Congress has “already exercised [its] plenary power to recognize Native Hawaiians,” as the Department contends, then why did Congress decline to pass the Akaka Bill, not once, but repeatedly? The Department’s proposal is based on a fiction and ignores the obvious: Native Hawaiians have not been granted federal tribal status because Congress does not support the effort to do so. The Department’s proposed rule is a transparent attempt to implement the failed Akaka Bill through executive action. Without statutory authorization, it would be unlawful to promulgate this regulation.

Judicial Watch warns that the Obama administration’s plan to recognize a tribe in Hawaii “would condone the division of Hawaiian citizens based on their race, and set a ‘dangerous precedent’ for further race-based divisions by other groups in other states.”

“The Obama administration’s latest attempted bureaucratic action to create a new tribe of Native Hawaiians is racist, unconstitutionally steals power from Congress, and could tear the country apart,” said Judicial Watch President Tom Fitton. “Of course, one of the insuperable obstacles to ‘recognizing’ a Native Hawaiian entity is that Hawaii had a truly multicultural and modern society before it ever became a United States territory or state. The Obama administration’s latest executive action would illegally help a radical secessionist movement in Hawaii that is engaged a dangerous game of racial division.”